BEFORE THE
PENNSYLVANIA PUBLIC UTILITY COMMISSION
Joint Application of Aqua Pennsylvania, :
Inc. and Superior Water Company, Inc., :
for Approval of the Transfer, by Merger, : A-2015-2472472
of All Stock and Rights of Superior : A-2015-2472473
Water Company, Inc., to Aqua :
Pennsylvania, Inc. :
ORDER DENYING Objections to Notices of Depositions
In accordance with the provisions of 52 Pa. Code § 5.324, § 5.344, and § 5.483, the purpose of this Order is to deny the Objections to Notices of Depositions for Dennis B. Hullman, P.E., and Stephen P. Dunning filed on July 13, 2015, by North Coventry Water Authority (NCWA).
HISTORY OF THE PROCEEDING
On March 17, 2015, Aqua Pennsylvania, Inc. (Aqua) and Superior Water Company, Inc. (Superior), filed a Joint Application for approval of the transfer, by merger, of all stock and rights of Superior to Aqua.
Notice of the filing was published in three periodicals of general circulation, with notification of the proposed merger being provided to surrounding municipalities and municipal authorities. Notice of the filing was also published in the Pennsylvania Bulletin on March 28, 2015.
On April 13, 2014, NCWA filed a Protest to the Joint Application.
On April 14, 2015, the Office of Consumer Advocate (OCA) filed a Notice of Intervention and Public Statement in this proceeding.
On April 30, 2015, Aqua filed a Preliminary Objection to NCWA’s participation in this matter on the basis that NCWA lacks the standing to protest the Joint Application.
On May 11, 2015, NCWA filed an Answer to Aqua’s Preliminary Objection.
On June 17, 2015, I issued an Order denying Aqua’s Preliminary Objection. I issued that Order because any doubt with respect to the factual averments in a preliminary objection must be resolved in favor of the non-moving party by refusing to sustain the preliminary objection. Boyd v. Ward, 802 A.2d 705 (Pa.Cmwlth. 2002). However, it was also clear that the claimed “overlap” of the NCWA and Superior systems remained an unresolved issue.
On July 1, 2015, Aqua filed Notices of Deposition for Dennis B. Hullman, P.E., and Stephen P. Dunning, the Chairman and Manager of NCWA, respectively.
On July 13, 2015, NCWA filed Objections to the Notices of Depositions.
DISCUSSION
The Commission's Rules of Administrative Practice and Procedure 52 Pa. Code
§§ 5.324 and 5.344 require a presiding officer to resolve any timely filed objection to a deposition.
NCWA has objected to the Notices of Deposition contending that they are unreasonably burdensome, overly broad, and irrelevant.[1] I do not agree. Each of the Notices clearly states:
The purpose of the deposition is to inquire . . . about the alleged bases for the protest filed by the Authority in the above-captioned matter, including information pertaining to the Authority's existing
water facilities and system and the ownership and operation thereof, and any disputed facts alleged in the pleadings of the above-captioned matter. (emphasis added)
At the heart of this issue is Aqua’s ongoing contention that NCWA lacks the requisite standing to protest the Joint Application. And though Aqua’s Preliminary Objection in this regard was denied, the Order of June 17, 2015, stated that what is involved is a factual issue. This is not a fishing expedition. Aqua is trying to resolve that factual issue. If I am mistaken in my understanding of the scope of the Notices, then Aqua should immediately so notify me.
I do understand that the depositions will impose a burden on the management of NCWA, but it is not an unreasonable burden. NCWA, as a Protestant, surely understood that participating in litigation inevitably has its costs, including imposing on the time of management. I would, however, direct the parties to discuss a mutually agreeable date, time and place for the depositions. If agreement cannot be reached, the parties may so advise me, and I will resolve that matter.
ORDER
THEREFORE;
IT IS ORDERED:
1. That the Objections to Notices of Depositions of Dennis B. Hullman, P.E., and Stephen P. Dunning filed on July 13, 2015, by North Coventry Water Authority are denied.
Dated: July 14, 2015
Dennis J. Buckley
Administrative Law Judge
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A- A-2015-2472472 / A-2015-2472473 Joint Application of Aqua Pennsylvania Inc and Superior Water Company, Inc., for approval of the Transfer, by Merger, of all Stock and Rights of Superior Water Company to Aqua Pennsylvania.
THOMAS T NIESEN ESQUIRE
THOMAS NIESEN & THOMAS LLC
212 LOCUST STREET
SUITE 600
HARRISBURG PA 17108-9500
717.255.7600
Accepts E-service
Representing Aqua Pennsylvania, INC.
DAVID P ZAMBITO ESQUIRE
D TROY SELLARS ESQUIRE
COZEN O'CONNOR
305 NORTH FRONT STREET SUITE 400
HARRISBURG PA 17101
717.703.5892
717.703.5900
Accepts E-service
Representing Superior Water Company, INC
JAMES P DOUGHERTY ESQUIRE
ADEOLU A BAKARE ESQUIRE
MCNEES WALLACE & NURICK LLC
100 PINE STREET
PO BOX 1166
HARRISBURG PA 17108-1166
717.237.5249
Accepts E-service
Representing Northway Coventry Water Authority
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[1] As the Notices and the Objections thereto are virtually identical in each case, they will be disposed of in this Order.